Texas Allows Abortion to Save a Woman's Life. Right?
Join us, if you will, in a thought experiment. It’s the fall of 2022. Dr. H., an obstetrician-gynecologist, practices in a red state. Much has changed in the reproductive rights landscape by then: In the spring, her state rushed to pass a law similar to the notorious 2021 Texas law that bans a large majority of abortions and incentivizes private citizens to sue anyone helping someone get an abortion. The Supreme Court also overturned Roe v. Wade in the Dobbs v. Jackson Women’s Health Organization case that year, leaving the issue of abortion regulation to individual states; a few years before, Dr. H.’s state passed a trigger ban that automatically banned the few abortions that were still legal in the state when Roe fell. In her state, the law now allows an abortion only when a pregnancy threatens the life of a pregnant person.
Dr. H.’s patient, Ms. R., has a form of severe cardiovascular disease that places her at an extremely high risk of maternal mortality or severe morbidity. There’s no way to tell for certain that she will die; some patients like her do survive their pregnancies. But physicians caring for her and others with this condition are encouraged to discuss abortion. If the patient chooses that option, is Dr. H. allowed to perform an abortion on Ms. R.?
History shows us how this lack of clarity puts women in danger. In the pre-Roe era, though abortion was illegal in America, states in theory gave physicians the right to perform abortions if doctors agreed that a pregnant woman’s life was threatened or, in some instances in later years, if her health was seriously at risk. But just what counts as a threat to someone’s life or health is often subjective, and those who made such judgments were not immune from political pressure.
Initially, decisions about in-hospital abortions were made quite informally among a small group of doctors. But by midcentury, doctors became concerned that too many abortions were being approved in hospitals. Reflecting the stigma surrounding abortion, they feared that their reputations, the reputations of their hospitals and even their licenses could be in jeopardy.
In reality, by the 1950s, not one doctor had been prosecuted for an in-hospital abortion. The only prosecutions that did take place involved abortions performed outside hospitals, whether done by doctors or others. (The majority of abortions before Roe occurred outside hospitals.) Nevertheless, many hospitals established therapeutic abortion committees to formalize the process of approving abortions.
These committees proved, in many instances, to be fraught with problems. There was often strong disagreement among committee members, with their own views on the morality of abortion inevitably coloring their decisions. Some hospitals established quotas, not wanting their institutions to become known as places where it was too easy to get the procedure. The committees disproportionately favored abortions for the private, mainly white, patients of the hospital’s physicians over the patients of color and poorer white patients who entered the hospital as charity cases. The number of approved abortions fell from an estimated 30,000 in the early 1940s to about 8,000 in the mid-1960s, leading more women to seek often unsafe abortion care outside a hospital. Growing frustration with the arbitrariness of the committees’ decisions apparently contributed to the American Medical Association’s vote in 1970 for expanding justifications for abortion in a hospital.